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8/11/2019 14-09-08 Order on Apple's JMOL Motion in 2nd Samsung Case
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1Case No.: 12-CV-00630ORDER GRANTING IN PART AND DENYING IN PART APPLES MOTION FOR JUDGMENT AS A MATTEROF LAW
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
APPLE, INC., a California corporation,
Plaintiff and Counterdefendant,
v.
SAMSUNG ELECTRONICS CO., LTD., aKorean corporation; SAMSUNGELECTRONICS AMERICA, INC., a New York
corporation; and SAMSUNGTELECOMMUNICATIONS AMERICA, LLC,a Delaware limited liability company,
Defendants and Counterclaimants.
)))))))))
))))))
Case No.: 12-CV-00630-LHK
ORDER GRANTING IN PART ANDDENYING IN PART APPLES MOTIONFOR JUDGMENT AS A MATTER OFLAW
[PUBLIC REDACTED VERSION]
On May 5, 2014, after a thirteen-day trial and approximately four days of deliberation, a
jury in this patent case reached a verdict. ECF No. 1884. On May 23, 2014, Apple filed a motion
for judgment as a matter of law, amended judgment, new trial, and damages enhancements. ECF
No. 1897-3 (Mot.). On June 6, 2014, Samsung filed an opposition. ECF No. 1906 (Oppn). On
June 13, 2014, Apple filed a reply. ECF No. 1919 (Reply). The Court held a hearing on the post-
trial motions on July 10, 2014. Having considered the law, the record, and the parties arguments,
the Court GRANTS Apples request for judgment as a matter of law of non-infringement of claim
15 of the 239 patent with respect to Apples iPad products, GRANTS Apples request for
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supplemental damages and prejudgment interest, and DENIES Apples motion for judgment as a
matter of law in all other respects.
I. LEGAL STANDARD
Federal Rule of Civil Procedure 50 permits a district court to grant judgment as a matter of
law when the evidence permits only one reasonable conclusion and the conclusion is contrary to
that reached by the jury. Ostad v. Or. Health Scis. Univ. , 327 F.3d 876, 881 (9th Cir. 2003). A
party seeking judgment as a matter of law after a jury verdict must show that the verdict is not
supported by substantial evidence, meaning relevant evidence that a reasonable mind would
accept as adequate to support a conclusion. Callicrate v. Wadsworth Mfg., Inc. , 427 F.3d 1361,
1366 (Fed. Cir. 2005) (citing Gillette v. Delmore , 979 F.2d 1342, 1346 (9th Cir. 1992)). The Court
must view the evidence in the light most favorable to the nonmoving party . . . and draw all
reasonable inferences in that partys favor. See E.E.O.C. v. Go Daddy Software, Inc. , 581 F.3d
951, 961 (9th Cir. 2009) (internal quotations and citations omitted).
A new trial is appropriate under Rule 59 only if the jury verdict is contrary to the clear
weight of the evidence. DSPT Intl, Inc. v. Nahum , 624 F.3d 1213, 1218 (9th Cir. 2010). A court
should grant a new trial where necessary to prevent a miscarriage of justice. Molski v. M.J.
Cable, Inc. , 481 F.3d 724, 729 (9th Cir. 2007).II. ANALYSIS
A. Infringement of Claim 8 of the 721 Patent by Samsungs Galaxy S II Products
Apple moves for judgment as a matter of law that Samsungs accused Galaxy S II products
infringe claim 8 of the 721 patent or, in the alternative, for a new trial on infringement and
damages for those products. Mot. at 3. The 721 patent discloses unlocking a portable electronic
device by using a predetermined gesture on a touch-sensitive screen. See generally 721 Patent
col.1. The 721 patent targeted the problem of unintentional activation or deactivation of functions
due to unintentional contact with the touch screen in portable devices. Id. Apple asserted claim 8
of the 721 patent against Samsung. Claim 8 depends from claim 7. Both claims recite:
7. A portable electronic device, comprising:a touch-sensitive display;
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memory;one or more processors; andone or more modules stored in the memory and configured for execution by the one
or more processors, the one or more modules including instructions:to detect a contact with the touch-sensitive display at a first predefined location
corresponding to an unlock image;to continuously move the unlock image on the touch-sensitive display in accordance
with movement of the detected contact while continuous contact with thetouch-sensitive display is maintained, wherein the unlock image is agraphical, interactive user-interface object with which a user interacts inorder to unlock the device; and
to unlock the hand-held electronic device if the unlock image is moved from thefirst predefined location on the touch screen to a predefined unlock region onthe touch-sensitive display.
8. The device of claim 7, further comprising instructions to display visual cues tocommunicate a direction of movement of the unlock image required tounlock the device.
Apple accused six Samsung phones of infringing the 721 patent. For the Admire, Galaxy Nexus,
and Stratosphere, Apple accused the slide to unlock feature in those phones. For the Galaxy S II,
Galaxy S II Epic 4G Touch, and Galaxy S II Skyrocket (Galaxy S II products), Apple accused
only the slide to answer feature. 1 While the jury found that the Admire, Galaxy Nexus, and
Stratosphere infringe claim 8, the jury found that the Galaxy S II products do not infringe. ECF No.
1884 at 5. The Court DENIES Apples motion, as explained below.
To prove infringement, the plaintiff bears the burden of proof to show the presence of
every element or its equivalent in the accused device. Uniloc USA, Inc. v. Microsoft Corp. , 632F.3d 1292, 1301 (Fed. Cir. 2011). If any claim limitation is absent from the accused device, there
is no literal infringement as a matter of law. Bayer AG v. Elan Pharm. Research Corp. , 212 F.3d
1241, 1247 (Fed. Cir. 2000). Accordingly, the jury needed to identify only one limitation missing
from the accused products to reach its verdict.
The sole dispute between the parties here is whether a reasonable jury could have found
that Samsungs slide to answer features do not infringe, but that the slide to unlock features do
infringe. At trial, Apples expert Dr. Andrew Cockburn testified that the slide to answer
1 After the July 10, 2014 hearing, and without permission from the Court, Apple filed additionalexhibits and argument, claiming that the accused function of the Galaxy S II Epic 4G Touch wasthe operation used to retrieve missed messages, as opposed to the operation used to respond toincoming phone calls. ECF No. 1945 at 1. Apples new evidence and argument are untimely andwill be disregarded.
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functionality in the Galaxy S II products was very similar to the slide to unlock feature utilized
by the non-Galaxy S II accused phones. Id. at 633-36, 653-64, 673-76. Dr. Cockburn testified that
both slide to unlock and slide to answer infringe because they detect a contact with the touch-
sensitive display at an unlock image; allow the user to continuously move the unlock image . .
. in accordance to the detected contact; provide visual cues for the direction of movement of
the unlock image required to unlock the device; and unlock the device when the unlock image is
moved to a predefined unlock region. See id. at 673-74. Apple also argues that Figure 7 in the
721 patent discloses a form of slide to answer, so this feature must fall within the scope of claim
8.
The Court concludes that a reasonable jury could have distinguished slide to answer from
slide to unlock for purposes of infringement. The verdict must stand unless the evidence,
construed in the light most favorable to the nonmoving party, permits only one reasonable
conclusion, and that conclusion is contrary to the jurys verdict. Pavao v. Pagay , 307 F.3d 915,
918 (9th Cir. 2002). Notably, neither party requested claim construction of any terms in the 721
patent. Accordingly, the jury was instructed to rely on the plain and ordinary meaning of the claim
language. See ECF No. 1847 at 30; see also ePlus, Inc. v. Lawson Software, Inc. , 700 F.3d 509,
520 (Fed. Cir. 2012) (In the absence of such a construction, however, the jury was free to rely onthe plain and ordinary meaning.).
Contrary to Apples arguments, the jurys non-infringement verdict for the Galaxy S II
products does not contradict the 721 patent or the record. As an example, the jury could have
reasonably determined that the slide to answer functionality does not unlock the hand-held
electronic device, as claimed. The patent describes a lock state as a condition where a phone
ignores all inputs other than unlocking or powering off: In the user-interface lock state
(hereinafter the lock state), the device 100 is powered on and operational but ignores most, if not
all, user input. . . . In other words, the locked device 100 responds to user input corresponding to
attempts to transition the device 100 to the user-interface unlock state or powering the device 100
off, but does not respond to user input corresponding to attempts to navigate between user
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interfaces. 721 patent col.7 l.64-66, col.8 ll.12-17. However, in Samsungs slide to answer
feature, the phone allows the user to answer or decline a call directly, which indicates that the
phone responds to user inputs. The Galaxy S II products also include the functionality of Reject
call with message, which allows the user to send the caller a pre-set text message instead of
accepting or declining the call. The jury could have verified this by testing the functionality on the
phones in evidence. JX 32 (Galaxy S II); JX 33 (Galaxy S II Epic 4G Touch); JX 34 (Galaxy S II
Skyrocket); ECF No. 1866-1 (final admitted exhibit list); see also PDX 40 (video demonstrative of
slide to answer on Galaxy S II products). Based on at least these statements in the patent and the
accused devices themselves, the jury could have decided that Samsungs slide to answer screen
is not a lock state, and that sliding to answer or decline a call does not unlock the device.
The verdict is also consistent with Figure 7 of the 721 patent. Apple claims that Figures
7A-7D demonstrate sliding to answer. However, that embodiment arguably does not show sliding
to answer a call because it does not result in entry into an active call. Rather, Figure 7D shows that,
after sliding to unlock, the user can press either Decline or Accept in response to an incoming
call: In FIG. 7D, the user completes the unlock action . . . . At this point, the user may interact
with the virtual buttons 708 and accept or decline the incoming call. 721 patent col.16 ll.4-11.
Thus, the patent explains that a screen where the user can accept or decline a call is an unlockedstate. However, Samsungs accused slide to answer screen also permits the user to accept or
decline a call, without further action:
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721 Patent Fig. 7D Excerpt from PDX 40 (Galaxy S II)
Accordingly, a reasonable jury could have determined that sliding to answer on the accused
devices is not a form of unlocking because the phone is in an unlocked state when it presents
these multiple functions. Apple did not request a construction for unlock; to the extent Apple
seeks such a construction now, Apples request is untimely. See Hewlett-Packard Co. v. Mustek
Sys., Inc. , 340 F.3d 1314, 1320-21 (Fed. Cir. 2003) ([W]here the parties and the district court elect
to provide the jury only with the claim language itself, and do not provide an interpretation of the
language in the light of the specification and the prosecution history, it is too late at the JMOL
stage to argue for or adopt a new and more detailed interpretation of the claim language and test the
jury verdict by that new and more detailed interpretation.).
Additionally, Apple points out that Dr. Greenberg did not testify to any infringement
defense specific to the Galaxy S II products. Mot. at 5. However, Apple bore the burden of proof
on infringement, and Apple cites no case holding that a jury must rely on expert testimony to find
non-infringement, and courts have held otherwise. See Creative Compounds, LLC v. Starmark
Labs. , 651 F.3d 1303, 1314 (Fed. Cir. 2011) (If the patentee fails to meet that burden [of proving
infringement], the patentee loses regardless of whether the accused comes forward with any
evidence to the contrary.); Intel Corp. v. Broadcom Corp. , No. CIV.A. 00-796-SLR, 2003 WL
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360256, at *14 (D. Del. 2003) (denying patentees motion for judgment as a matter of law of
infringement; Broadcom was not required to put on its own expert to disprove infringement
because it was Intel that bore the burden of proving infringement.).
For these reasons, the Court cannot conclude that the evidence permits only one
reasonable conclusion and substitute its judgment for the jurys. Pavao , 307 F.3d at 918. Apples
motion regarding infringement of the Galaxy S II products is DENIED.
B. Infringement of Claim 20 of the 414 Patent
The 414 patent covers asynchronous data synchronization amongst devices, which the
parties nicknamed background sync. Apple asserted claim 20 of the 414 patent against
Samsung. The jury found that none of the ten accused Samsung products infringes the 414 patent.
See ECF No. 1884 at 9. Apple now moves for judgment as a matter of law of infringement or,
alternatively, a new trial on infringement and damages. Claim 20 depends from claim 11. Both
claims recite:
11. A computer readable storage medium containing executable programinstructions which when executed cause a data processing system to performa method comprising:
executing at least one user-level non-synchronization processing thread, wherein theat least one user-level non-synchronization processing thread is provided bya user application which provides a user interface to allow a user to accessand edit structured data in a first store associated with a first database; and
executing at least one synchronization processing thread concurrently with theexecuting of the at least one user-level non-synchronization processingthread, wherein the at least one synchronization processing thread is
provided by a synchronization software component which is configured tosynchronize the structured data from the first database with the structureddata from a second database.
20. The storage medium as in claim 11 wherein the synchronization softwarecomponent is configured to synchronize structured data of a first data classand other synchronization software components are configured tosynchronize structured data of other corresponding data classes.
414 Patent cls. 11, 20. Apple claims that it presented evidence that all Samsung accused products
satisfy every limitation of claim 20, while Samsung conceded infringement of several limitations
and presented insufficient proof of non-infringement. However, as set forth below, the jurys non-
infringement verdict is supported by substantial evidence and is not contrary to the clear weight of
the evidence. Accordingly, Court DENIES Apples motion.
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Apples theory of infringement is that the Android operating system, as installed on the
accused Samsung devices, contains Sync Adapters that perform the synchronization functions in
claim 20. It is undisputed that claim 20 requires at least three distinct synchronization software
components. As the Court explained in its summary judgment order: The first is the claimed
synchronization software component configured to synchronize structured data of a first data
class and the other two are the other synchronization software components configured to
synchronize structured data of other corresponding data classes. ECF No. 1151 at 23. Moreover,
claim 20 requires that each synchronization software component be configured to synchronize
structured data from a different data class. See 414 patent cl.20.
At trial, the parties presented opposing expert testimony from Dr. Alex Snoeren (Apple)
and Dr. Jeffrey Chase (Samsung), who both analyzed relevant source code. The experts concurred
that the accused software includes six Sync Adapters, two for each of three data classes: Calendar,
Contacts, and Email. See Tr. at 980:1-15 (Snoeren), 2166:12-23 (Chase); see also SDX 3634. The
experts further agreed that the Google Calendar Sync Adapter for the Calendar data class and
the Google Contacts Sync Adapter for the Contacts data class are synchronization software
components . . . configured to synchronize structured data. See Tr. at 981:11-17; SDX 3635. In
support of Apple, Dr. Snoeren testified that the Gmail Sync Adapter for the Email data class isalso a synchronization software component, and that therefore the accused software has three such
components corresponding to different data classes. See Tr. at 981:18-982:3. Dr. Snoeren reviewed
Google documentation for the Sync Adapters (PX 172) and opined that all six Sync Adapters call a
function called PerformBackgroundSync, which allegedly establishes that the Gmail Sync
Adapter can perform the claimed synchronization function. Id. at 984:23-986:16. Alternatively, Dr.
Snoeren stated that three Sync Adapters that use the Microsoft Exchange protocol (Exchange
Calendar, Exchange Contacts, and Exchange Mail) also synchronize structured data. See id. at
986:17-987:4.
Samsung argues that the jury could have determined that the accused software does not
include at least three synchronization software components that were each configured to
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requesting such a construction before. At trial, Apple did not object to Dr. Chases testimony as
improperly arguing claim construction. See Price v. Kramer , 200 F.3d 1237, 1252 (9th Cir. 2000)
(noting that failure to object to testimony waives argument on appeal). Furthermore, this Court
already addressed and rejected Apples argument before trial. When Apple sought summary
judgment of infringement, the Court noted that: (1) the parties did not seek a construction of
configured to synchronize, (2) that plain and ordinary meaning applied, and (3) that a jury could
reasonably conclude that the accused Sync Adapters merely direct other components to perform
synchronization operations and are not themselves configured to synchronize structured data as
required by the claim. ECF No. 1151 at 23-24. Apples attempt to revisit this decision is
unsupported by fact or law. See Oracle Am. v. Google Inc. , No. 10-CV-03561-WHA, 2012 U.S.
Dist. LEXIS 75026, at *9 (N.D. Cal. May 30, 2012) (Rule 50 is not an occasion for yet another
round of summary judgment based on new slants on the case law.).
Apples remaining arguments challenge Samsungs interpretation of the conflicting
testimony. See Mot. at 10-11; Reply at 4-6. However, we do not weigh the evidence or make
credibility determinations in assessing the propriety of granting judgment as a matter of law.
Harper v. City of Los Angeles , 533 F.3d 1010, 1021 (9th Cir. 2008). Because substantial evidence
supports the jurys non-infringement verdict, the Court DENIES Apples motion with respect to the414 patent.
C. Infringement of Claim 25 of the 959 Patent
The 959 patent is directed to a universal interface for retrieval of information in a
computer system, also colloquially called universal search. Apple asserted claim 25 of the 959
patent against Samsung. The jury found that none of the ten accused Samsung products infringes
the 959 patent. See ECF No. 1884 at 9. Apple seeks judgment as a matter of law of infringement
or, alternatively, a new trial on infringement and damages. Claim 25 depends from claim 24. Both
claims recite:
24. A computer readable medium for locating information from a plurality oflocations containing program instructions to:
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receive an information identifier; provide said information identifier to a plurality ofheuristics to locate information in the plurality of locations which includethe Internet and local storage media;
determine at least one candidate item of information based upon the plurality ofheuristics; and
display a representation of said candidate item of information.
25. The computer readable medium of claim 24, wherein the information identifieris applied separately to each heuristic.
959 Patent cls. 24, 25. Apple claims that it presented evidence that all products satisfy each
limitation of claim 25, while Samsung unsuccessfully challenged only one limitation. The Court
disagrees and DENIES Apples motion. The jurys non-infringement verdict is supported by
substantial evidence and is not contrary to the clear weight of the evidence.
The parties focus on claim 25s requirement for instructions to provide said information
identifier to a plurality of heuristics to locate information in the plurality of locations which includethe Internet and local storage media. To prove infringement of this element, Apple relied on
expert testimony from Dr. Snoeren. See generally Tr. at 940:21-945:5, 952:8-956:23. In the
accused products, Dr. Snoeren identified the infringing functionality as the Quick Search Box (or
Google Search) in the Gingerbread, Jelly Bean, and Ice Cream Sandwich versions of Android.
Id. at 940:21-941:20, 942:7-19 (Gingerbread), 943:13-944:7 (Jelly Bean and Ice Cream Sandwich).
For Gingerbread, Dr. Snoeren told the jury that the Web Module in the Samsung products
provides a heuristic for locating information on the Internet because it combine[s] places that the
user has actually previously browsed using the web browser and suggestions that the Google search
suggestion server has presented. Id. at 956:8-23. For Jelly Bean and Ice Cream Sandwich, Dr.
Snoeren testified that the Google Module is the heuristic module that on these versions of the
phone provide the Internet searching applications. Id. at 945:2-5; see PDX 91.24 (Apple
demonstrative).
However, Samsung presented sufficient rebuttal evidence to permit the jury to decide that
the accused devices lack instructions to search a plurality of locations which include the Internet,
as claim 25 requires. Bjorn Bringert, a Google engineer who worked on all versions of the
Google search app (Tr. at 1568:15-22), explained that the accused Google search functionality
employs a software method called blendResults() that does not search the Internet, but rather
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In this case, the jury found that, as a subjective matter, Samsung did not willfully infringe
the 647 patent. ECF No. 1884 at 7. In other words, the jury considered whether the objectively-
defined risk (determined by the record developed in the infringement proceeding) was either
known or so obvious that it should have been known to the accused infringer, Seagate , 497 F.3d at
1371, and determined that it was not. Apple posits that Samsung willfully infringed because Apple
gave written notice to Samsung of the 647 patent in August 2010 ( see PX 132), and Samsung
subsequently copied the quick links feature and continued to infringe even after this lawsuit
began. However, Samsung points to substantial evidence that supports the jurys view to the
contrary. Specifically, Apples expert Dr. Mowry admitted on cross-examination that his expert
report noted that the accused browser functionality has existed in Android since at least version
1.5 (Cupcake) . . . and that there have been no changes in the accused functionality, and
acknowledged that Cupcake was released in April 2009. Tr. at 919:9-920:14. Because the accused
features appeared before Apple notified Samsung of the 647 patent, this timing could negate any
inference of copying by Samsung. The jury also could have concluded that Samsung had
reasonable defenses to infringement, despite the ultimate verdict of infringement and no invalidity.
Samsung presented expert testimony from Dr. Kevin Jeffay on both non-infringement and
invalidity of claim 9 of the 647 patent, and Samsung did not present evidence regarding theadequacy of Samsungs defenses throughout the lawsuit. 2
As explained above, willfulness requires both that the jury find subjective willfulness and
that the court find objective willfulness. Here, the jury found no subjective willfulness, and the
Court agrees that substantial evidence in the record supports this finding. Therefore, even if the
Court were to find the objective prong satisfied, there can be no ultimate willfulness determination.
Accordingly, the Court need not reach the objective analysis. Apples motion is DENIED.
2 The parties also dispute whether Apple proved that it practices the 647 patent (for purposes ofestablishing that Samsung copied the patented feature), and Samsungs alleged ability to designaround the patent. Resolving these disputes is unnecessary because the jury could have relied onthe other evidence discussed here to find no subjective willfulness.
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E. Whether Samsung Failed to Establish Affirmative Defenses
Apple moves for judgment as a matter of law that Samsung failed to prove the affirmative
defenses listed in Samsungs Answer, including waiver, acquiescence, estoppel, laches, failure to
mitigate, prosecution history estoppel, prosecution laches, acts of plaintiff, and actions of
others. Mot. at 22 (citing ECF No. 107). Apple notes that Samsung did not offer any evidence at
trial on these defenses. Id. The Court denies Apples motion.
Because Samsung did not include these defenses in the joint pretrial statement, which the
parties stated specified the issues of fact and law remaining to be litigated, ECF No. 1455-1 at
25, Samsung abandoned those defenses and they were eliminated from the case. Cf. S. Cal. Retail
Clerks Union and Food Employers Joint Pension Tr. Fund v. Bjorklund , 728 F.2d 1262, 1264 (9th
Cir. 1984) (We have consistently held that issues not preserved in the pretrial order [under Rule
16(e)] have been eliminated from the action.). 3 Nonetheless, Apple does not cite, nor has this
Court found, any case in the Ninth Circuit or Federal Circuit holding that when a party abandons an
issue pretrial, the opposing party is entitled to judgment as a matter of law. 4 To the contrary, the
Federal Circuit recently clarified that judgment as a matter of law should be granted only on issues
that were litigated, or fairly placed in issue, during the trial. Alcon Research Ltd. v. Barr
Laboratories, Inc. , 745 F.3d 1180, 1193 (Fed. Cir. 2014) (citation omitted). In Alcon , the Circuitheld that [a] court should not render judgment [as a matter of law under Rule 50(b)] with respect
3 Final pretrial orders are governed by Rule 16(e), which provides that a pretrial order shallcontrol the subsequent course of the action unless modified by a subsequent order. The NinthCircuit has held that a final pretrial order supersedes the pleadings and that claims or defenses setforth in the pleadings but omitted from the final pretrial order are not properly before the districtcourt. Bjorklund , 728 F.2d at 1264. Here, the parties filed a joint pretrial statement and attached a
proposed Rule 16 pretrial order which held that the parties had specified the issues of fact and lawremaining to be litigated in the pretrial statement and that the order would supplement the
pleadings and govern the course of trial of this action. ECF No. 1455-1 at 25, 28. This Courtsubsequently filed a pretrial conference order that did not specifically adopt the parties proposedorder by specifying the remaining issues of fact and law to be litigated. ECF No. 1398 (CaseManagement Order). Nonetheless, the Court finds that Samsungs concession that the pretrialstatement supplemented the pleadings suffices to deem that Samsung abandoned its defenses.4 The case Apple cites, Bjorklund , 728 F.2d 1262, is inapposite. It merely held that because a Rule16(e) pretrial order controls the subsequent course of the action, a defendants failure to preservean issue by failing to raise it in the pretrial order prevents him from asserting that that issue is amaterial issue of fact that precludes summary judgment. Id. at 1264-65.
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to claims reference[d] in the complaint but not raised in the pretrial statement or litigated at trial
[because] a reference in the complaint is not sufficient to support a judgment. Id. Here, by
analogy, because Samsung raised these defenses in its Answer but did not raise them in the pretrial
statement nor litigate them at trial, this Court finds that no judgment may be rendered on these
defenses. Other courts have rejected similar motions in other patent cases. See, e.g. , VirnetX Inc. v.
Apple Inc., 925 F. Supp. 2d 816, 848-50 (E.D. Tex. 2013) (denying plaintiffs motion for judgment
as a matter of law on defenses which were never presented to the jury because both parties had
agreed to narrow their claims and defenses before trial, and the court would not penalize
[defendants attempt to] narrow issues [for trial] by entering judgment against the defendant).
Accordingly, the Court denies Apples motion.
F. Request for Enhanced Damages for the 721 Patent and the 647 Patent
35 U.S.C. 284 states that the court may increase the damages up to three times the
amount found or assessed. Apple asks this Court to award enhanced damages based on Samsungs
allegedly willful infringement of the 721 and 647 patents. Mot. at 23. However, a finding of
willful infringement is a prerequisite to the award of enhanced damages. i4i Ltd. Pship v.
Microsoft Corp., 598 F.3d 831, 858 (Fed. Cir. 2010); see also Bard, 682 F.3d at 1005. Because this
Court grants Samsungs motion for judgment as a matter of law that Samsung did not willfullyinfringe the 721 patent in a separate Order, and denies Apples motion for judgment as a matter of
law that Samsung willfully infringed the 647 patent, see supra Part II.D, the Court has no basis to
grant enhanced damages for the 721 and the 647 patents, and thus DENIES Apples request.
G. Supplemental Damages
Apple seeks an award of supplemental damages through the date of judgment for infringing
sales not considered by the jury. 35 U.S.C. 284 requires that courts award compensation for every
infringing sale, and the Federal Circuit has held that a patent holder is entitled to supplemental
damages for infringing sales that the jury did not consider. See Finjan, Inc. v. Secure Computing
Corp., 626 F.3d 1197, 1212-13 (Fed. Cir. 2010). Thus, [c]ourts routinely grant motions for a
further accounting where the jury did not consider certain periods of infringing activity[.] Metso
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Minerals, Inc. v. Powerscreen Intl Distribution Ltd., 833 F. Supp. 2d 333, 347 (E.D.N.Y. 2011);
see also Itron, Inc. v. Benghiat, Case No. 99cv501JRTFLN, 2003 WL 22037710, at *15 (D.
Minn. Aug. 29, 2003) (granting motion for accounting of infringing activities); Hynix
Semiconductor Inc. v. Rambus Inc., 609 F. Supp. 2d 951, 960-61 (N.D. Cal. 2009) (awarding
supplemental damages for infringement occurring between verdict and entry of judgment).
The Court agrees that an award of supplemental damages is necessary here, as there are
sales for which the jury did not make an award, because they occurred after the jury reached its
verdict. This would include sales of the Galaxy S III and the Galaxy Note II. Mot. at 29; Oppn at
27. Consistent with Federal Circuit case law and this Courts approach in the first case between the
parties, the Court intends to calculate the supplemental damages award for these products starting
from May 6, 2014, the day after the jury verdict. See Case No. 11-CV-01846, ECF No. 2271 at 3
( Apple I Order) (Consistent with the Presidio Components decision, the Court intends to
calculate the supplemental damages award beginning on August 25, 2012, the day after the
verdict.). The Court will calculate supplemental damages using the same methodology the Court
adopted in the first case, namely that the per-product rate should be calculated based on the jurys
verdict: [The Court will] determine the per-sale amount on a product-by-product basis, and use
that per-sale amount to determine the supplemental damages amount for each product that hasremained on the market for any post-verdict period. Because the jury returned an award for each
product separately, the Court can simply divide the jury award for each product by that products
number of sales to calculate this per-product amount. Apple I Order at 5.
However, the Court denies Apples request that the Court calculate and award supplemental
damages at this time before the Court enters final judgment. Mot. at 31. Courts have found it
appropriate to delay orders for the submission of evidence of the number of post-verdict sales and
hearings thereon pending the resolution of appeals, to avoid potentially unnecessary expenditures
of time and money in preparing such an accounting[.] Itron, 2003 WL 22037710, at *16; see also
Eolas Techs., Inc. v. Microsoft Corp., 2004 WL 170334, at *8 (N.D. Ill. Jan. 15, 2004), vacated in
part on other grounds, 399 F.3d 1325 (Fed. Cir. 2005) (I grant the motion and will require an
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accounting after any appeal in this case is terminated.). Because the parties have indicated that an
appeal is anticipated, proceeding without the Federal Circuits guidance may cause unnecessary
expenditures of time and resources should the Circuit reverse any part of the jurys verdict on
liability. The Court thus finds it appropriate to delay the consideration of evidence of actual post-
verdict sales and calculation of supplemental damages until after the completion of the appeal in
this case. The Court made this same determination in the first case. See Apple I Order at 6, 8; Case
No. 11-CV-01846, ECF No. 2947 at 3.
Finally, Samsung argues Apple is not entitled to supplemental damages because the verdict
indicates the jurys damages award was a lump-sum royalty intended to compensate Apple for all
past and future infringement, and that granting supplemental damages would breach the jurys role
in awarding damages. Oppn at 24-25. Because the jury verdict does not expressly state whether it
compensates Apple for Samsungs both past and future use of the patented technology or only
compensates Apple for past use, it is ambiguous on this point. In interpreting an ambiguous verdict
form, 5 this Court has broad discretion to determine if the verdict figure represented past
infringement as well as ongoing infringement. Telcordia Techs., Inc. v. Cisco Sys., Inc. , 612 F.3d
1365, 1378 (Fed. Cir. 2010). The Court rejects Samsungs argument, as explained below.
In Telcordia , the district court rejected the defendants argument that the jurys damagesaward was necessarily a lump-sum award intended to compensate the patentee for past and future
infringement, reasoning that the evidence at trial provided no way of knowing one way or the other
what the jury actually did. Telcordia Techs., Inc. v. Cisco Sys., Inc., 592 F. Supp. 2d 727, 728 n.8
(D. Del. 2009), affd in part, vacated in part, 612 F.3d 1365 (Fed. Cir. 2010) (rejecting defendants
argument that the court could not grant patentee an ongoing royalty until expiration of the patent
because the jury awarded a lump-sum that covered future infringement, reasoning that (1) the jury
issued a general verdict; (2) the jury heard different sets of damages numbers from the parties two
experts, which the jury could accept, reject, or vary; (3) the jurys award was different from the
damages award advanced by either partys expert; and (4) there was nothing in either the record or
5 Neither party requested a special verdict form that indicates the jurys intent on this issue.
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verdict form from which the court could determine whether the jury based its award on a lump-
sum, paid-up license; running royalty rate; some variation or combination of the two; or rejected
the theories and reached its own number.). When the defendant appealed the district courts order
granting the patentee equitable relief in the form of an ongoing royalty, the Federal Circuit
affirmed, reasoning that the court did not abuse its broad discretion in interpreting the verdict
form because the verdict form was ambiguous, neither party had proposed the jurys exact $6.5
million award, and it was unclear whether the jury based its award on a lump-sum, paid-up
license, running royalty, some variation or combination of the two, or some other theory. 6
Telcordia, 612 F.3d at 1378. The Federal Circuit thus implicitly affirmed the district courts
rationale that when a record is unclear as to what the jury actually did, it is appropriate to reject a
defendants argument that the jurys award necessarily compensated the patentee for future
infringement.
Similarly, in Whitserve, LLC v. Computer Packages, Inc ., 694 F.3d 10, 35-38 (Fed. Cir.
2012), the Federal Circuit vacated and remanded the district courts denial of supplemental
damages for infringement after the verdict but before final judgment was entered because the court
had failed to explain its reasons for denying such damages. However, in the midst of doing so, the
Circuit rejected the defendants argument that the patentees supplemental damages request was properly denied because the jury had necessarily awarded a lump-sum license for all past and
future infringement. Id. at 38. The Circuit noted that nothing in the record would support that
conclusion because the parties limited their damages arguments to past infringement rather than
projected future infringement and the jurys verdict did not indicate that the award was meant to
cover future use of [plaintiffs] patents[.] Id. at 35, 38; see also id. at 35 (We can not [sic] accept
[defendants] suggestion that a paid-up license was awarded [by the jury].).
6 The Federal Circuit noted that while the district courts decision was not clearly erroneous, theFederal Circuit itself could not determine whether the jury compensated Telcordia for all ofCiscos infringing activities. Telcordia, 612 F.3d at 1378.
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Here, in light of the ambiguity concerning whether the jury actually awarded a lump-sum
royalty to compensate Apple for past and future infringement, the Court rejects Samsungs
argument that the jury did so. A s in Whitserve and Telcordia , there is no express statement in the
verdict form that the damages award would encompass damages for future infringement. See ECF
No. 1884. The verdict form did not require the jury to denote which damages theories it applied. Id.
Further, as in Telcordia , the jurors were presented with several sets of damages numbers during Dr.
Chevalier and Dr. Vellturos testimony at trial, which the jurors could have chosen to accept,
reject, or vary, and the jurys award of $119,625,000 is different from the damages award proposed
by both parties experts. Finally, t he fact that the verdict form chart with respect to the Galaxy S II
Products expressly indicated that the award would be made for sales through the Present supports
the interpretation that the jury could have believed that its damages awards for all products were
meant to compensate Apple only for past infringing sales. See ECF No. 1884 at 10 (asking jury to
provide their dollar breakdown for each of certain products the Galaxy S II Epic 4G Touch, the
Galaxy S II Skyrocket, and Galaxy S II for each of the following three time periods only: (1)
August 1, 2011- June 30, 2012; (2) July 1, 2012 August 24, 2012; and (3) August 25, 2012
Present.).
While Samsung argues the evidence is clear that the jury made its damages award based oncalculations by Samsungs expert Dr. Chevalier, Oppn at 25-26 (citing Chevalier Declaration,
ECF No. 1907-5), 7 Apple rebuts that there are multiple ways the jury could have reached its total
damages number by starting from Dr. Vellturos proposed reasonable royalty damages[.] Reply at
17. The Court need not dissect the verdict to resolve this dispute because even assuming the jury
utilized Dr. Chevaliers reasonable royalty numbers as a starting point, that would not prove that
the jury awarded a lump-sum to compensate for past and future infringement as opposed to
compensating Apple for past infringement on a per-unit, per-patent running royalty basis for all
7 Dr. Chevalier claims that the jurys allocation of damages between the 647, 721, and 172 patents and between the accused products for each patent, and the fact that the jury did not grant auniform per-unit royalty for all products, demonstrates a lump-sum verdict. See ECF No. 1907-5, 67. She also claims that the fact that the jury reallocated the total damages number whencalculating damages for the Galaxy S II products further indicates a lump sum. See id. 68.
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H. Prejudgment Interest
Under 35 U.S.C. 284, the district court has considerable discretion in awarding
prejudgment interest. See BioRad Labs., Inc. v. Nicolet Instrument Corp., 807 F.2d 964, 969 (Fed.
Cir. 1986). The purpose of prejudgment interest is to compensate[ ] the patent owner for the use
of its money between the date of injury and the date of judgment. Oiness v. Walgreen Co., 88 F.3d
1025, 1033 (Fed. Cir. 1996). Such interest is usually awarded from the date of infringement to the
date of judgment. See Nickson Indus. Inc., v. Rol Mfg. Co., Ltd., 847 F.2d 795, 800 (Fed. Cir.
1988). [P]rejudgment interest should ordinarily be awarded absent some justification for
withholding such an award[.] Gen. Motors Corp. v. Devex Corp. , 461 U.S. 648, 657 (1983)
(holding that an award of prejudgment interest is generally appropriate after a finding of patent
infringement). As in the first patent infringement case between Apple and Samsung, see Apple I
Order at 7-8, the Court concludes here that Apple is entitled to an award of prejudgment interest.
The rate of prejudgment interest is left to the wide discretion of this Court, which may
award interest at or above the prime rate. Uniroyal, Inc. v. Rudkin-Wiley Corp. , 939 F.2d 1540,
1545 (Fed. Cir. 1991). Courts may use the prime rate, the prime rate plus a percentage, the U.S.
Treasury Bill rate, state statutory rate, corporate bond rate, or whatever rate the court deems
appropriate. Junker v. HDC Corp. , No. C-07-05094 JCS, 2008 WL 3385819, at *6 (N.D. Cal. July28, 2008). The parties have proposed two different rates. Apple proposes the prime rate. Mot. at
30-31. Samsung argues that the lower 52week Treasury Bill rate is appropriate, consistent with
this Courts approach in the first case between the parties. Oppn at 28; Apple I Order at 7. In
determining the appropriate rate, courts have considered whether, during the period of
infringement, the plaintiff borrowed money at a higher rate, what that rate was, or [whether] there
was a causal connection between any borrowing and the loss of the use of the money awarded as a
result of [the defendants] infringement. Laitram Corp. v. NEC Corp., 115 F.3d 947, 955 (Fed.
Cir. 1997) (upholding district courts decision to use the Treasury Bill rate in case where district
court found no evidence of a causal connection between any borrowing and the loss of the use of
the money awarded as a result of the infringement.). Such factors would make an award at a
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higher rate more appropriate. Here, although Apple has submitted a declaration stating that Apple
borrowed in the public markets at rates higher than the Treasury Bill rate, see Robinson Decl., ECF
No. 1897-8 9, Apple maintains substantial cash reserves and has not presented any evidence that
it needed to borrow money because it was deprived of the damages award. Thus, here, as in
Laitram, and as this Court found in the first case, the Court concludes the 52week Treasury Bill
rate is sufficient. The Treasury Bill rate has been accepted and employed by many courts in patent
cases as a reasonable method of placing a patent owner in a position equivalent to where it would
have been had there been no infringement. See, e.g. , Datascope Corp. v. SMEC, Inc., 879 F.2d 820,
829 (Fed. Cir. 1989), cert. denied, 493 U.S. 1024 (1990).
Finally, the Court addresses the appropriateness of compounding. Apple seeks annual
compounding. Mot. at 31. The Federal Circuit has explained that the determination whether to
award simple or compound interest [] is a matter largely within the discretion of the district court.
Gyromat Corp. v. Champion Spark Plug Co., 735 F.2d 549, 557 (Fed. Cir. 1984). Courts have
recognized that compounding is necessary to fully compensate the patentee. Sealant Sys. Intl,
Inc. v. TEK Global S.R.L. , No. 5:11-CV-00774-PSG, 2014 WL 1008183, at *6 (N.D. Cal. Mar. 7,
2014) (citation omitted). Because a patentees damages include the foregone use of money,
compounding is needed to account for the time value of money. Id. (citation omitted). Thus,
courts have approved annual compounding and even daily compounding. Id. (citation omitted).
As Samsung has not indicated any objection to compounding, Oppn at 28-30, the Court concludes,
as it did in the first case, that annual compounding should be utilized. See Apple I Order at 7-8.
Accordingly, when the anticipated appeal of this case is resolved, and the final damages
amount settled, this Court will award Apple prejudgment interest at the 52week Treasury Bill rate,
compounded annually. The Court declines Apples request that the Court calculate and award
prejudgment interest at this time before any appeal is resolved. Mot. at 31. Because both parties
have indicated that they may challenge the legal sufficiency of the jurys award, it will be more
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efficient to calculate prejudgment interest after appeal, when the final amount of the judgment is
known. The Court made this same decision in the first case. See Apple I Order at 8. 10
I. Non-infringement of Claim 27 of the 449 Patent
The 449 patent is directed to an apparatus for recording and reproducing digital image
and speech. Samsung asserted claim 27 of the 449 patent against Apple. The jury found that all
five accused Apple products infringe the 449 patent, and awarded damages of $158,400.00 for that
infringement. See ECF No. 1884 at 11-12. Apple now moves for judgment as a matter of law of
non-infringement or, alternatively, a new trial on infringement and damages. Claim 27 depends
from claim 25. Both claims recite:
25. A digital camera comprising:
a lens,an imaging device which converts an optical image into an analog signal;an A/D converter which converts said analog signal from said imaging device to a
digital signal;a compressor which compresses said digital signal outputted from said A/D
converter, and generates compressed data by using a different compressingmethod for moving image signals and for still image signals;
a recording circuit which records compressed data, said compressed data including amoving image signal, and a still image signal;
a decompressor which decompresses said compressed data by using a differentdecompressing method according to whether said recorded compressed datais a moving image signal or a still image signal;
a reproducing circuit which reproduces a moving image signal, a sound signal insynchronous to said moving image signal, and a still image signal; and
a display which displays said moving image signals and still image signals outputtedfrom said reproducing circuit, and a list of said moving image signal and stillimage signal as a search mode, and a list of classifications as a classificationmode;
wherein said recording circuit records each one of said plurality of image signalswith classification data, and
said display lists a plurality of classifications and a number of images belonging toeach classification.
27. A digital camera according to claim 25,wherein said classification is able to change by a direction of a user.
449 Patent cls. 25, 27. Apple contends that Samsungs trial evidence failed to demonstrate
infringement of at least four limitations of claim 27. Considering each of these limitations in turn,
10 The Court rejects Samsungs argument that prejudgment interest must be calculated on a final judgment amount that has subtracted $158,400, which represents Samsungs award for Applesinfringement of Samsungs 449 patent. Oppn at 30. Samsung cites no law for the proposition thatsubtraction of the counterclaimants award is required prior to calculating prejudgment interest onan award relating to infringement of the patentees patents.
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the Court concludes that substantial evidence supports the jurys finding of infringement, and the
verdict is not contrary to the clear weight of the evidence, and accordingly DENIES Apples
motion.
First, Apple contends that the accused iPhone 4S, iPhone 5, and iPod Touch 5th Generation
products lack a reproducing circuit which reproduces . . . a sound signal in synchronous to said
moving image signal, as claim 27 requires. Apple states that Samsungs expert for the 449 patent,
Kenneth Parulski, identified an audio circuit in the accused devices ( see SDX 3742), but argues
this audio circuit cannot reproduce synchronous audio. Apple points to the testimony of Apple
engineer Tim Millet and allegedly contradictory testimony from another Samsung expert, Dr. Dan
Schonfeld. However, the record contains sufficient evidence to support the jurys determination.
Mr. Millet did testify that Apples software team decided not to use the audio subsystem
contained in the three disputed products for audio processing. Tr. at 2699:20-2700:13. However,
Mr. Millet also testified on cross-examination that he was not an expert on Apples software, see
id. at 2701:14-16, and the jury was free to assess the credibility of his direct testimony. Samsungs
expert explained how the accused products have reproducing circuits for sound, see id. at 2609:22-
2610:14, while Apples expert, Dr. Jim Storer, did not offer a non-infringement opinion based on
the absence of a reproducing circuit despite talking with Apple engineers, see id. at 2721:20-2722:6. Next, contrary to Apples position, the cited testimony from Samsungs 239 patent expert
did not contradict Samsungs position for the 449 patent: Dr. Schonfeld stated that integrated
circuits require software generally, but said nothing about the 449 patent or a reproducing
circuit in the accused devices. See id. at 2558:1-4. It is also undisputed that Apples products can
reproduce audioa fact that the jury could have confirmed from the representative devices
admitted into the record (JX 38-46A).
Second, Apple argues that none of the five accused products contains the claimed
compressor or decompressor. Apples theory is that these limitations require components that
compress or decompress both still images and videos, and that its products use separate and
distinct components to compress/decompress still images and videos. Mot. at 33-34. Apples
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argument is unpersuasive. This Court did not construe the claim terms compressor and
decompressor, and instructed the jury to apply plain and ordinary meaning for terms not
construed. See ECF No. 1847 at 30. On cross-examination from Apples counsel, Mr. Parulski
testified that he identified a single Apple design chip with the circuitry that performs both
compressing methods, even though certain components of the chip originate with different
manufacturers. Tr. at 2638:25-2639:6, 2643:5-14 (Thats one integrated circuit.). Mr. Millet also
told the jury that a system on chip (SOC) is essentially a single integrated circuit that integrates
a large number of different components, and that the Apple A6 chip in the infringing devices
contains circuitry for compressors and decompressors. Id. at 2688:13-20, 2701:21-2702:8. Apples
contention that the SOC contains dozens of different components, most unrelated to compression
or decompression (Reply at 20) is misplaced because the presence of additional components does
not negate infringement. See Genentech, Inc. v. Chiron Corp. , 112 F.3d 495, 501 (Fed. Cir. 1997)
(in a comprising claim, other elements may be added and still form a construct within the scope
of the claim).
Third, Apple challenges the sufficiency of Samsungs proof that the accused products
contain a recording circuit that records image signals with classification data. Samsung
identified the Camera Roll feature in Apples products as meeting this limitation. Apples non-infringement argument is that the Camera Roll includes all photos and videos taken with the
device, so there is no classification of those images. See Mot. at 35. Apple also argues that the
449 patent requires recording of image signals with classification data, such that the
classification data must be recorded simultaneously with the images. The Court disagrees that there
is inadequate evidence to support the verdict. The parties did not request construction of
classification data, so its plain and ordinary meaning applies. Mr. Parulski testified that the
accused products store information about which images are in the Camera Roll and the other
rolls, based on his inspection of Apples source code and testimony from Apples corporate
representative. Tr. at 2615:22-2616:9; see also id. at 2637:9-16. While Dr. Storer testified that the
Camera Roll does not include classification data, see id . at 2775:25-2778:24, the jury could have
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its claim until the third week of trial, albeit before presenting its affirmative case. Samsungs
withdrawal at such a late stage in the proceeding was prejudicial to Apple. Apple was forced to
prepare Apples defense to Samsungs claim in advance of trial and had to try Apples case for
three weeks assuming that Apple had to reserve time to rebut Samsungs claim. Finally, Samsungs
dismissal of its claim of infringement did not moot Apples counterclaim by indicating that
Samsung would not sue Apple for infringement as to those products in the future. Under these
circumstances, the Court finds that the issue of non-infringement was fairly placed in issue such
that Apple is entitled to a determination on the issue, unlike in Alcon where (1) the parties
explicitly recognized in the pretrial order that the plaintiff had dropped those patents, (2) the jury
never learned of the infringement claim, and (3) the defendant never filed a counterclaim. 11
This Court notes that in affirming the district courts denial of judgment to the defendant in
Alcon , the Federal Circuit emphasized that the defendant had not filed a counterclaim for
declaratory judgment of non-infringement, and noted that such a filing would likely have
compelled a different outcome. Alcon , 745 F.3d at 1193 (noting that if the accused infringer does
not file a counterclaim, then it is up to the patentee to decide what claims are to be litigated and
decided at trial but [i]f an accused infringer has filed a counterclaim, then the patentee has notice
that, even if it drops its infringement claims, the issue of infringement remains to be litigated.);see also TolOMatic, Inc. v. Proma ProduktUnd Mktg. Gesellschaft m.b.H., 945 F.2d 1546,
1554 (Fed. Cir. 1991), abrogated on other grounds, Markman v. Westview Instruments, Inc., 52
F.3d 967 (Fed. Cir. 1995) (There must be sufficient and explicit notice of the claims at risk to
grant judgment as a matter of law). Here, Apples filing of a counterclaim means Samsung had
notice that the issue of infringement was still at issue even after Samsung withdrew its
infringement claims. This is because Apple never withdrew Apples counterclaim after Samsung
11 The Federal Circuit reached a similar conclusion in an analogous case pre- Alcon . See, e.g. , Strubv. Axon Corp. , 168 F.3d 1321, 1998 WL 537721, at *10-11 (Fed. Cir. Aug. 17, 1998)(unpublished) (reversing district courts denial of the plaintiffs motion for judgment as a matter oflaw of validity because defendants counterclaim for declaratory judgment of invalidity was part ofthe pre-trial order and defendant waited until the close of evidence to withdraw the counterclaim,reasoning that [w]ithdrawal of a clearly presented claim at such a late stage in the proceeding wasclearly prejudicial to [the plaintiff] which was forced to prepare a defense to this claim in advanceof trial, and thus plaintiff was entitled to judgment on that claim).
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gave Apple notice that Samsung was withdrawing Samsungs claim of infringement as to the iPad
products.
Finally, Samsung argues Apple somehow waived its argument that Apples non-
infringement counterclaim was still at issue after Samsung withdrew its infringement claim
because Apple did not file any response to this Courts order, issued in the middle of trial, that the
parties file an update regarding which Apple products were accused of infringing Samsungs
patents. Oppn at 35. This argument fails. The Courts order, see ECF No. 1737, never asked Apple
to state whether Apple withdrew its non-infringement counterclaim, so there was no reason for
Apple to file any such statement.
In sum, the Court finds that Apples counterclaim was fairly placed in issue during the trial.
Because Samsung had the burden to show infringement, Medtronic, Inc. v. Mirowski Family
Ventures, LLC, 134 S.Ct. 843, 85051 (2014), but presented no evidence, the Court GRANTS
Apples motion for judgment as a matter of law that the iPad products do not infringe the 239
patent.
K. New Trial on Infringement for 414 and 959; New Trial on Willfulness for allApple Patents Other than 721; New Trial on Damages for all Apples Patents
Apple seeks a new trial on various bases, and the Court addresses each in turn below.
1. Assertions that Apple Does Not Practice the 172, 414, and 959 Patents
Apple seeks a new trial on infringement for the 414 and 959, a new trial on willfulness for
all Apples patents other than the 721, and a new trial on damages for all of Apples patents on the
basis that Samsung improperly and prejudicially told the jury that Apple does not and has never
practiced the 414 patent, 959 patent, and U.S. Patent No. 8,074, 172 (the 172 patent). Mot. at
37. The Court DENIES Apples motion.
The Court first sets forth the relevant procedural history. This Courts case narrowing order
required Apple and Samsung early on in this case to each limit their asserted claims to 5 per side
at trial. ECF No. 471 at 2. In October 2013, Samsung filed a motion to enforce the Courts case
narrowing order, arguing that Apple was attempting to assert eight claims at trial by arguing that
Samsung infringed five claims and separately arguing that Apple practiced three extra claims -
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Claim 34 of the 959 patent, Claim 27 of the 172 patent, and Claim 11 of the 414 patent
(hereinafter extra claims). See ECF No. 804-3 at 3. Apple argued in response that the three extra
claims for which Apple wanted to present evidence of Apples practice were not asserted claims
that should count towards the five claim limit at trial. ECF No. 845 at 2. At the hearing on
Samsungs motion to enforce, the Court disagreed with Apple. The Court noted that if Apple
wanted to argue at trial that it practiced those extra claims, those claims would count towards
Apples limit of five asserted claims and Apple would have to accordingly reduce the number of
claims it asserted for infringement. ECF No. 1133 at 158. The Court also gave Apple a choice. The
Court stated that if Apple was going to argue at trial that Apple practiced the extra claims to rebut
Samsungs argument that Apple does not practice the patents, in the interest of fairness Samsung
would be allowed to challenge the validity of the extra claims. Id. at 155-59, 170. This was because
the Court reasoned it would be unfair for Apple to use the extra claims as a sword for damages
purposes by arguing Apple practices those claims, yet prevent Samsung from challenging the
validity of those claims. Id. In response, Apple elected to withdraw the three extra claims and not
present evidence of practice. Id. at 170. The Court confirmed this in its order memorializing the
hearing. See ECF No. 1057 at 2 (At the hearing, Apple stated that it would not seek to introduce at
trial any evidence of its three unasserted claims, i.e., claim 34 of the 959 patent, claim 27 of the172 patent, and claim 11 of the 414 patent. Accordingly, the Court denies Samsungs motion to
enforce Apples compliance with the Courts case narrowing order [] as moot.).
At the pretrial hearing on the parties motions in limine, the parties and the Court revisited
this issue. The Court again told Apple that if Apple wanted to assert its practice of the extra claims
in order to wipe out a potential non-infringing alternative, that in the interest of fairness, the claims
would count as one of Apples five asserted claims and would be subject to an invalidity challenge
by Samsung. ECF No. 1411 at 48-50, 54-55, 58 (If you want to put this claim at issue, you are
welcome to do that. It just needs to be one of your five, three of your five if youd like to use all
three. Thats just your choice . . . [If you assert the practice of these claims,] it counts as one of
your five and it is potentially going to be invalidated . . . Im not going to let this be litigated
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behind the door in a sword and shield fashion where they cant challenge validity, but you get to
use it defensively. Thats just not going to happen. Whats your choice?). The Court also
explicitly gave Apple the offer to litigate the validity of the unasserted claims before trial. Id. at 51
(Are you prepared [to] litigate the validity? Im willing to do the validity on these three and we
could potentially invalidate these three unasserted claims before the trial on this and it would be a
non-issue.); id. at 54 (Court informing parties that the Court could decide validity before trial if
Apple agreed). Apple rejected the Courts offer and again chose to stick with [its] original five
[claims]. Id. at 58. Accordingly, the Court precluded Apple from contending at trial that Apple
practices the extra claims and held that Apple may not rebut any Samsung contention that Apple
products constitute an acceptable noninfringing alternative to the 414, 172, or 959 patents[.]
ECF No. 1398 at 3. The Court noted in its Order that it gave Apple an opportunity to rebut
Samsungs contention that Apple products constitute acceptable noninfringing alternatives by
contending that Apple practices unasserted claims of the 414, 172, or 959 patents so long as
Apple was willing to litigate the validity of the unasserted claims either before or during the March
31, 2014 trial. Apple declined the Courts offer. Id.
Before trial, the parties filed a joint motion to supplement Preliminary Jury Instruction No.
20 and filed Proposed Final Jury Instruction No. 18 which would inform the jury that Apple doesnot contend that it practices the 414, 172, or 959 patents in this action. ECF No. 1418 at 2. The
Courts final preliminary jury instructions accordingly stated that [i]n this case, Apple does not
contend that it practices the 414, 172, and 959 patents. ECF No. 1542 at 22. The parties also
filed a joint amended pretrial statement and order in which the parties stated in the Undisputed
Facts section that Apples products do not practice claim 25 of the 959 patent, claim 20 of the
414 patent, or claim 18 of the 172 patent, which are the claims Apple asserted against Samsung
for infringement purposes (hereinafter asserted claims). ECF No. 1455-1 at 9.
During Samsungs opening statement, Samsung told the jury that Apple does not practice
the 172, 414, and 959 patents and never has. See ECF No. 1622 at 357, 359, 386-87, 391, 401,
413-14. Shortly thereafter, Apple filed a motion asking this Court to permit Apple to introduce
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evidence to rebut Samsungs assertions by claiming Apple practices and used to practice the
patents, and asking for a curative instruction to minimize the prejudice resulting from Samsungs
assertions. ECF No. 1567 at 5-6. The Court denied Apples motion for curative action as to
whether Apple currently practices the 414, 172, and 959 Patents. ECF No. 1578 at 1.
Nonetheless, the Court ordered Apple to file a supplemental brief as to what timely produced
and/or timely disclosed evidence exists in the record as to whether Apple in the past practiced the
three asserted claims. Id.
In response, Apple submitted a brief identifying only the following evidence. ECF No.
1581-3. With respect to claim 20 of the 414, Apple submitted a quote from the deposition of
Gordon Freedman, the inventor of the 414 patent, in which he noted that an iPhone
synchronization prototype included software that embodied all the ideas in claim 20 of the 414
patent and that that software was essentially what was in the shipping product. ECF No. 1581-5
at 216-218. With respect to claim 18 of the 172 patent, Apple submitted a quote from the
deposition of Kenneth Kocienda, an inventor of the 172 patent, in which he noted that he did not
think that the first original iPhone practice[d] claim 18 but then in response to the question
whether other non-English language keyboards for the iPhone practice claim 18, he responded I
believe that the languages which I listed earlier, Japanese, Chinese, et cetera, do employ this.ECF No. 1581-6 at 128. With respect to claim 25 of the 959, Apple cited to Apples Response to
Interrogatory No. 42 dated June 13, 2013 and Apples Third Supplemental Response to
Interrogatory No. 25 dated June 19, 2013, in which Apple identified source code files with respect
to iOS version 6 as implementing the functionality that practices the asserted claims of the 959
patent. ECF No. 1581-7 at 17-18 and ECF No. 1581-8 at 16. Apple expressly conceded in its
supplemental brief that Apples experts did not provide opinions that Apple practices or has
practiced the asserted claims. ECF No. 1581-3. The Court subsequently denied, on the record,
Apples motion seeking a curative action regarding whether Apple practiced the patents in the past.
ECF No. 1623 at 613.
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